FOIA Update: Significant New Decisions

Significant New Decisions

In another recent ruling delineating the privacy protection to be afforded federal employment records, the U.S. Court of Appeals for the Fourth Circuit held that Exemption 6 does not shield the identities, education and relevant experience of successful applicants for federal jobs. Plaintiff Core, an unsuccessful applicant for a Postal Service position, had requested from the Postal Service records reflecting the education and relevant work experience of all other applicants. The Fourth Circuit approved the withholding of the identities and all other information concerning the unsuccessful applicants, finding that disclosure of their nonselection "may embarrass or harm" them. However, it ruled that the public's interest in the competency of the people hired, and in the Postal Service's adherence to proper hiring procedures, offset any "slight infringement" of the successful applicants' privacy; the requested information concerning this latter group was therefore found disclosable. Citing FOIA Update, the Court of Appeals noted that its decision was fully consistent with the Department of Justice policy regarding the release of records reflecting federal employees' prior government employment, private employment related to current duties, awards, honors and memberships in professional associations. See FOIA Update, Sept. 1982, at 3.

In an extremely broad opinion strongly approving the manner in which the Federal Bureau of Investigation responds to FOIA requests for records pertaining to third parties, the U.S. Court of Appeals for the Seventh Circuit held that the FBI appropriately invoked Exemptions 6 and 7(C) in refusing to confirm whether it maintains law enforcement records on such named individuals. The district court had not accepted the FBI's standard "refuse to confirm or deny" response and had ordered it to either produce existing documents or submit a detailed Vaughn affidavit justifying their withholding. The Seventh Circuit flatly reversed the district court, however, holding that any detailed FOIA withholding justification given in response to third-party requests for law enforcement records -- even one broadly citing Exemption 7(D) -- might itself "expose the subject of the inquiry to harassment and actual danger" and, at the least, would constitute a serious invasion of privacy by "revealing that a third party has been the subject of FBI investigations." Finally, the Court of Appeals found no "genuine public interest" -- only a personal one -- in the requester's "interest in ensuring that his [bank fraud] convictions were not obtained as a result of a violation of the Constitution." The plaintiff has petitioned the Supreme Court for certiorari in this case.

In a closely watched Exemption 4 case, the U.S. Court of Appeals for the First Circuit criticized and vacated a district court decision which had too narrowly construed the first prong of the National Parks test. The district court had refused to permit Exemption 4 protection for salary data provided to a Federal Reserve Bank by a private organization, because it regarded National Parks as requiring that the information be "'necessary' in the sense of being absolutely essential to the operations of the agency" before it could be withheld. Such a restrictive interpretation, the First Circuit ruled, "would do violence to the statutory purpose of Exemption 4 were the Government to be disadvantaged by disclosing information which serves a valuable purpose and is useful for the effective execution of its statutory responsibilities."

Although the First Circuit declined to adopt the Government's rejection of the National Parks decision (see FOIA Update, Fall 1983, at 8-9), it pointedly emphasized that the National Parks test is not limited to just the two particular interests that it expressly delineates, specifically holding that "the Government should not be precluded from invoking the protection of Exemption 4 merely because the asserted interest is not precisely one of those two identified in National Parks." Rather, it declared, the appropriate inquiry for applicability of Exemption 4 should be whether release of the information would harm an "identifiable private or governmental interest" and it found specific support for this holding in a footnote of National Parks, 498 F.2d at 770 n.17, where the D.C. Circuit had expressly left open the possibility that other governmental interests not embodied in the test could appropriately be protected. (See also FOIA Update, Fall 1983, at 15, for a further discussion of this point).

Relying heavily on the legislative history of the Privacy Act, as well as the statutory language of both the Privacy Act and the FOIA, the U.S. Court of Appeals for the Seventh Circuit has once again found that the Privacy Act is a FOIA Exemption 3 statute. (See also Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979), cert. denied sub nom. Terkel v. Webster, 444 U.S. 1013 (1980)). Accordingly, the Seventh Circuit ruled in this case that records pertaining to a first-party requester which were found to be exempt from disclosure under the Privacy Act's subsection (j)(2) (protecting information compiled for criminal law enforcement purposes) need not be disclosed under the FOIA. Permitting the requester FOIA access to such records, it said, "would result in an emasculation of Privacy Act Exemption (j)(2) that would be inconsistent with clearly articulated congressional intent." It further noted that the legislative history of the Privacy Act reveals "Congress' special concern that individuals not be permitted access to certain records containing information about their own criminal investigations." The Court of Appeals emphasized the appellants' inability to identify any legislative history establishing their contrary position and it rejected their argument that subsection (b)(2) of the Privacy Act governs disclosures to first- and third-party requesters under the Act. Instead, it found that both the introductory language of that section and its legislative history indicate that subsection (b)(2) was intended to apply only to third-party access to records.

This decision leaves evenly divided the four circuit courts of appeals which have considered whether the Privacy Act is an Exemption 3 statute. See Porter v. United States Department of Justice, 717 F.2d 787 (3d Cir. 1983); Provenzano v. United States Department of Justice, 717 F.2d 799 (3d Cir. 1983) (companion case with Porter); Greentree v. United States Customs Service, 674 F.2d 74 (D.C. Cir. 1982); Painter v. FBI, 615 F.2d 689 (5th Cir. 1980); see also FOIA Update, Spring 1983, at 3. The Supreme Court has been asked to rule on this issue in both Provenzano and Shapiro.

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